Action brought on 23 May 2011 - Fon Wireless v OHIM - nfon (nfon)

(Case T-283/11)

Language in which the application was lodged: Spanish

Parties

Applicant: Fon Wireless Ltd (London, United Kingdom) (represented by: F. Brandolini Kujman, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: nfon AG (Munich, Germany)

Form of order sought

The applicant claims that the Court should:

declare the action admissible, together with all of the relevant documents and copies;

declare the proposed evidence admissible;

accept that evidence, and annul and declare inapplicable the decision of the Fourth Board of Appeal of OHIM of 18 March 2011 in Case R 1017/2009-4 and, consequently, refuse the registration of Community trade mark No 6.206.321 'nfon';

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: nfon AG.

Community trade mark concerned: word mark 'nfon' for goods and services in Classes 9, 35 and 38.

Proprietor of the mark or sign cited in the opposition proceedings: the applicant.

Mark or sign cited in opposition: Community and national figurative and word mark 'fon' for goods and services in Classes 9, 38 and 42.

Decision of the Opposition Division: opposition upheld.

Decision of the Board of Appeal: appeal upheld.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, since the opposing marks are similar; and infringement of Article 8(5) of Regulation (EC) No 207/2009, since nfon AG claims to be taking advantage of the reputation acquired by the earlier marks.

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